For the first time, the sound appeared in film in 1927 in The Jazz Band Singer, which is considered the first sound film in the history of cinema. Since then, music has become an essential element of every audiovisual work, creating a background for the images that appear. Today it is hard to imagine the evolution of cinematography without composers of film music, such as John Williams (author of music to, among others, E.T., Indiana Jones, Star Wars, Harry Potter, Schindler’s List), Hans Zimmer (author of music to The Lion King, Gladiator, Inception, Interstellar), Wojciech Kilar (author of music to Pan Tadeusz and The Pianist), or Jan A.P. Kaczmarek (author of music to Total Eclipse, Washington Square, Quo Vadis, The Dreamer). Many times a film soundtrack achieves great success and, consequently, is exploited separately from the film itself, constituting an important source of income for both producers and distributors.
How to properly acquire the rights to use music in a film?
The most advantageous option for a producer is to order the composition of the soundtrack from a given composer. The subject of the contract in such a case should be the acquisition of copyrights and related rights to the commissioned music by the producer. This option also gives the producer a wider scope of negotiations to use the music for promotion and advertising of the film, as well as to use the music separately from the film.
Very often, however, the producer is interested in using a particular, already known hit song in a given film scene, which thus becomes cult. Well, today it is hard to imagine Apocalypse Now without The End by The Doors or Pulp Fiction without John Travolta and Uma Thurman dancing to You Never Can Tell by Chuck Berry.
The legitimate use of such well-known songs in a movie is, as a rule, based on non-exclusive licenses granted for the producer.. Indeed, it is difficult to expect artists to transfer copyrights or grant exclusive licences to their well-known, distributed hits. Of course, there is no legal objection to this. However, this would be economically unviable for the artists and would deprive them of the right to use their works to a certain extent. It is hard to imagine that e.g. The Rolling Stones would agree to transfer the rights without territorial and time limitations to their song “Satisfaction”.
With the above in mind, the producer, to synchronise a given song in a film, is obliged to obtain (collectively):
- a licence to use the author’s economic rights to the verbal layer;
- a license to use the author’s economic rights to the musical layer;
- a license to related rights to the artistic performance (vocals, instrumentalists);
- a license to exercise the rights of a phonogram producer (i.e. the first sound recording).
The ideal situation for a producer is when all the above rights are held by one entity, e.g. a music label/publisher. Then it requires concluding only one contract. However, very often different entities hold the rights to the lyrics, the music layer, or the performance or phonogram. As a result, to acquire the synchronisation right for one musical work, the producer is forced to conclude sometimes even four contracts with different entities. The situation becomes even more complicated when, for example, the rights to the musical layer are held by more than one entity. Then the producer is granted a licence to use a share of a certain amount of the music layer copyright. In the case where two entities have rights to the music layer in equal shares, i.e. 50% each, a common practice that can be found on the market is to guarantee in the contract to each of the entitled entities that their remuneration for granting a licence to a share in the copyright will not be lower than the remuneration of the other entity that will grant a license to its copyright share.
What is worth bearing in mind when obtaining a licence to use a musical work in a Film?
The general licensing provisions contained in the Copyright and Neighbouring Rights Act apply here. However, taking into account the realities of the film industry market, it is important to pay attention to obtaining the right to synchronize the song also with film material, especially with the trailer. Permission to synchronise a musical work with a film does not automatically give us the right to synchronise with a trailer. At the same time, it should be emphasised that synchronisation of a song with a trailer does not mean the same thing as using fragments of a film in other promotional materials. In the first case we are dealing with another synchronization of a musical work, only now it is not with the film but with the trailer. In the second case, when using fragments of the film in promotional materials, we do not synchronise them again. This seems to be a purely technical difference, however, it may have a significant legal meaning in a particular case.
What about ZAiKS?
The Authors’ Society ZAiKS is an organisation for collective management of authors’ rights, to which the author, the author’s heir, or a music publisher entrusts, and ZAiKS takes over for collective management on a fiduciary transfer basis, economic copyrights to all works by the author. Thus, the question is whether a film producer, to obtain licences for the use of a musical work in a film as mentioned above, may approach ZAiKS to conclude the necessary agreements. The answer is: NO. Well, according to agreements on collective management of copyright concluded by ZAiKS with the author, the author’s heir, the music publisher and whose templates are annexes to the regulations approved by a resolution of the Management Board of ZAiKS Association of 26 February 2020: “The entrustment shall not include authorization to include the work in advertisements and audiovisual works and to exercise derivative copyrights, except that ZAiKS shall determine the rules of distribution in individual fields of exploitation and shall collect remuneration therefor. For the Agreement, it is assumed that the notion of audiovisual works includes feature films and series, documentary films and series, animated films and series”. (§2, Article 7 of the Agreement). It follows from the above contractual provision that ZAiKS is not authorised to grant licences to synchronise musical works with films and commercials. This means that the producer, to obtain the necessary permits, is obliged to apply directly to the author, the author’s heir, or other entities holding copyrights to the musical works in question, e.g. the record company/publisher.
 Muzyka z ekranu Maciej Jabłoński
Author: Ewa Karwowska – attorney at law at LSW. Specialises in intellectual property law, in particular film law and advertising law.